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People v. White

OPINION FILED DECEMBER 10, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

TOMMY E. WHITE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

The defendant, Tommy E. White, was charged with two counts of theft and one count of burglary in the circuit court of Kane County. All three charges were joined for trial. A jury convicted the defendant of burglary and theft of property under $300 and acquitted him of theft over $300. The trial court sentenced defendant to concurrent terms of probation, three years for burglary, and one year for theft under $300, both sentences of probation, including concurrent six-month jail sentences, to be served at the beginning of the probationary period.

Defendant appeals raising these three issues: (1) whether the charge of burglary was improperly joined for trial with the theft charges; (2) whether the trial court abused its discretion in denying the defendant's motion in limine regarding evidence of his prior conviction for purposes of impeachment; (3) whether the jury was improperly instructed concerning evidence of statements of the defendant.

The defendant was charged by information with the January 19, 1982, theft of over $300 worth of shock absorbers from the Merlin Muffler Shop in Elgin (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(a)(1)), with the August 26 or 27 burglary thereof (Ill. Rev. Stat. 1981, ch. 38, par. 19-1), and by complaint with the October 25 theft from the shop of one pair of shock absorbers valued at less than $300 (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(a)(1)).

Shortly before 10 p.m. on October 25, 1982, Elgin police officer Redden and his partner were in the area of the Merlin Muffler Shop when they noticed a man standing between two commercial buildings, and saw another man sitting behind the steering wheel of a green Dodge parked near the front door of the business. The two men were asked for identification; the defendant was the man in the car, the one who had been standing between the buildings was Lloyd Johnson, the defendant's brother-in-law. Defendant explained Johnson had to urinate and that was why he was standing between the buildings. Both men were allowed to depart. Officer Redden later returned to the area where Johnson had been standing, and found on the ground a muffler box inside of which was a box of brand new shock absorbers.

The next morning Officer Redden contacted the defendant at the Merlin Muffler Shop where he worked and asked him to come to the police department to answer some questions. Officers Redden and Kline testified they interviewed the defendant after advising him of his rights, and that he stated he knew someone who was looking for a set of air shock absorbers and the reason he took the shocks from the store was because he needed money for "some food and stuff for his family." The defendant said Johnson dropped the box the night before when he saw the officers. Officer Redden testified the defendant related, "Usually they insert * * * a new air shock box * * * inside an old used muffler box, bring it outside and put it in the dumpster during business hours. After the store closes they wait and come back, check, make sure nobody is around the building, take the muffler box with the shock absorber inside the box, bring it out and put it in his truck."

Officer Kline testified that at the same interview the defendant also admitted his involvement in the felony theft of some shock absorbers from the Merlin Muffler Shop on January 19, 1982. According to Kline, the defendant stated he removed several sets of shock absorbers and put them into a garbage can at the rear of the shop. He later contacted Johnson, who drove to the shop in the defendant's car and retrieved the shock absorbers. They were later sold and the money split. Kline testified the defendant denied any involvement in the August burglary of the premises at this initial interview, but did admit to such involvement at a later interview that same day. According to Kline's testimony, the defendant stated that on August 26, 1982, he went to apartment 3-C at the Watch Court apartment complex and met with Archie, Willie, and Lloyd Johnson. The four men talked about ways to make money, and decided to go to the Merlin Muffler Shop and break into the business. They drove to the shop in the defendant's car, where he broke out a window on the rear overhead door, opened the door and let in the others. This testimony of Officer Kline concerning the events of the August burglary was consistent with the officer's prior testimony at the preliminary hearing, but differed from his suppression hearing testimony. There, he testified the defendant told him "they" had left a side door unlocked and that he had kicked out a window at the back of the business to make it appear that a burglary had occurred. Continuing with Kline's trial testimony, he stated the defendant told him that once inside, the four men removed a quantity of shock absorbers, which they put into his car. He then shut the overhead door, and they drove to 513 Jefferson where they unloaded the shock absorbers. The next day the Johnsons retrieved the stolen items and sold them.

Elgin police officer Keeney testified that in the early morning hours of August 27, 1982, he was called to the Merlin Muffler Shop and observed that a window in an overhead garage door at the rear or west side of the building had been broken out. Keeney also observed that a "normal entrance door" for pedestrians on the south side of the building was standing slightly open.

Two other witnesses who testified for the State were Ron DeRueda, the local district manager for Merlin Muffler, and Charles Davis Hamilton, the shop manager. Hamilton testified concerning his method of inventory control, which enabled him to determine that 15 pairs of air shock absorbers which retailed then at $99.95 each were missing from the shop on January 20, 1982. When he arrived at work on that date, he found a muffler box outside the shop which contained a pair of VT shocks, which are the heavy-duty shock absorbers made for vans or trucks. The deficiency was noted after comparison of actual inventory on hand and the control cards kept by Hamilton. Hamilton also testified that when he arrived at work on August 27 he found a rock lying in the middle of the floor. A window of the overhead door at the back of the building had been broken out, and it appeared that the rock had been thrown from the outside into the shop. Fifteen pairs of air shock absorbers were determined to have been taken from the shop on that occasion also. Hamilton testified that the defendant was employed at Merlin Muffler when both of these incidents occurred. Further, Hamilton testified that no one had been given permission to take the merchandise which was determined to be missing, and that in January and August there were two other employees besides himself and the defendant who worked at the shop.

Ron DeRueda testified Merlin Mufflers, Inc., is a corporation licensed to do business in Illinois and, on cross-examination, he admitted he verified the original information filed against the defendant for the theft of 24 pairs of shock absorbers rather than 15. The number "24" had been arrived at prior to the taking of an official physical inventory. He also admitted past quarterly physical inventories of the shop have at times revealed shortages.

Before the defendant testified, he renewed his pretrial motion in limine to preclude the State from cross-examining him as to the nature of his felony conviction in 1980. He planned to include in his own testimony that he pled guilty to a felony within the last 10 years, but argued that reference to the specific felony, involuntary manslaughter, during cross-examination would be more prejudicial than probative, and should be prohibited. The trial court denied the motion.

The defendant testified he was 30 years old and engaged to be married. During the last 10 years, he was charged with and had pleaded guilty to involuntary manslaughter. In January through October 1982, he was employed at Merlin Muffler Shop, and prior to that time he had worked there on and off for four years and was manager from September 1979 to September 1980. He worked elsewhere for a year and then returned to Merlin. He was assistant manager of the shop and an installer of auto parts prior to his dismissal on October 26, 1982, when he was caught trying to steal a pair of shock absorbers. Although he admitted he tried to steal the shock absorbers on that occasion in order "to feed [his] future family," he denied he admitted to the police that he was involved in either the January felony theft or the August burglary.

He testified that in February 1982, he observed the shop's semiweekly janitor, Jeff Manu (spelled phonetically in the record), preparing to leave work with a shopping cart. The manager, Hamilton, found two pairs of VT shock absorbers in the cart. Manu continued to work at the shop, however, and no charges were brought against him. The defendant stated he told the police concerning the January theft that there had been more than one incident of shock absorbers being removed from the shop, and that a lot of people used to hang around the shop. With regard to the August burglary, he testified he did not know who did it, but stated some of his tools had been taken at that time also. He further testified he told the police he would have no reason to burglarize the shop since he worked there every day.

As noted, the jury found him not guilty of the January felony theft, but guilty of the October misdemeanor theft and the August burglary.

SEVERANCE

The defendant contends the burglary offense was a separate and distinct offense from the two theft offenses, and that joinder of the charges for trial over his timely objection deprived him of a fair trial. He posits that because the jury called upon to decide his guilt or innocence of burglary was informed of evidence of the other, unrelated theft offenses, he urges his conviction for burglary should be reversed and the cause remanded for a new trial.

The State argues there were ample similarities between the offenses so as to render them one comprehensive transaction. Thus, it argues the offenses were properly joined for trial.

The joinder of related prosecutions is governed by section 114-7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ...


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